459 N.E.2d 913 | Ohio Ct. App. | 1983
By this original action in mandamus, relator-attorneys, Arthur C. Graves and William A. Gardner, seek a writ of mandamus ordering respondents, Court of Claims and the Court of Claims commissioner, to comply with R.C.
Respondents filed no answer to the complaint, so that the factual allegations thereof must be deemed admitted even though a default judgment would not be appropriate pursuant to Civ. R. 55(D). There appears, however, to be little dispute as to the facts and as to the proceedings in the Court of Claims.
The claimant, Irene Warner, filed an application pursuant to R.C.
The correctness of these findings is not before us since, in affirming the decisions denying a reparations award, the Court of Claims referred the matter to a single commissioner to determine attorney fees in accordance with R.C.
"As part of an order, a single commissioner or a panel of court of claims commissioners shall determine and award reasonable attorney's fees, commensurate with services rendered, to be paid by the state to the attorney representing a claimant under sections
The first sentence of R.C.
In this case, the commissioner neither denied the claim for attorney fees nor found the original claim to be frivolous, although the Court of Claims indicated in its decision that the appeal to it may have been frivolous. Rather, the Court of Claims commissioner awarded $350 of the $2,450 requested by relators as attorney fees, the commissioner merely noting that some services were performed individually by the two attorneys and some were performed jointly as indicated by the statement. Without further explanation, the commissioner merely stated "the award of attorney's fees should equal $350.00." He did not even make a finding that this amount was reasonable or that it was commensurate with the services rendered. Rather, the commissioner's finding is devoid of any reasoning or basis for an award of attorney fees of such a low amount. It is apparently undisputed that the Attorney General did not contest the award of attorney fees before the commissioner and made no filing in opposition to the award of attorney fees, and that no hearing was conducted upon the question, *262 nor any evidence received bearing upon the issue other than the affidavits of the attorneys that the statements are an accurate account of the legal services rendered.
Respondents now contend that this very low award of attorney fees is justified because the Court of Claims judge who affirmed the commissioner's decision was critical of the attorneys' work product, the judge apparently taking judicial notice of unspecified newspaper reports of barroom incidents and referring to ten unreported decisions of that judge or court for which the "same argument" had been rejected.
There are some questionable comments in the Court of Claims' decision affirming the commissioner's denial of the claim. We question whether judicial notice of barroom conditions can be taken because of some newspaper reports. We also question whether it is proper to conclude as a matter of law that it is foreseeable that if one becomes involved in a fight in a barroom the other person will pull a gun and shoot and kill him. At most, this is a highly debatable factual issue.
On the other hand, the decision did point out ample basis for concluding pursuant to R.C.
However, even assuming that the appeal to the Court of Claims was frivolous so that an award for attorney fees could be denied with respect to that appeal, only $695 of the requested fee pertained to that appeal. The other $1,755 of the requested fee related to presenting the claim to the commissioners. More importantly, however, the commissioner who made the very low attorney fee award made no finding that either the claim or the appeal was frivolous.
Under the circumstances, we are forced to the conclusion that there was an abuse of discretion on the part of the commissioner in setting the fees. There is no evidence whatsoever justifying a fee of only $350. Nor is there any "experience" of the commissioner demonstrated as urged by respondents justifying a conclusion of a lower attorney fee. While, because of his position as an attorney, the commissioner may evaluate evidence, he *263 still needs evidence to evaluate and must evaluate the evidence before him, not some preconceived notion of his own as to how much should be paid for an unsuccessful attorney with respect to a claim. However, even if the matter is to be viewed in that fashion, in light of what evidence there is in this record and the difficulties that necessarily must have been encountered in attempting to prove a very difficult, and debatable, claim, reasonable attorney fees necessarily must be much greater than the $350 awarded by the commissioner. There is no suggestion by anyone that the $60 hourly rate requested by relators is unreasonable, and this court would note that in general it is a fairly modest rate.
We do not find that relators are entitled to the full amount claimed. It may be possible that there is evidence indicating some question as to compensation for the appeal to the Court of Claims, as well as some question as to whether there was duplication of effort with respect to some of the instances where the attorneys apparently worked jointly, but this amounts to only $420, or seven hours of the total time expended. With respect to one and one half hours, or $90, the statement indicates that time was charged for only one attorney although both spent the full hour and one half.
Respondents' other defense is that mandamus is not an appropriate remedy, although conceding there is no other remedy available. We find no merit to this contention. Mandamus is available to correct an abuse of discretion. R.C.
We find an abuse of discretion on the part of the Court of Claims commissioner in making an award of only $350 upon the evidence adduced, there being no evidence justifying such a low award, and such an award not being otherwise justified. The award is so unreasonably low under the circumstances as to constitute a gross abuse of discretion, at least in the absence of a hearing or evidence justifying such a low award. Here, as we noted, the Attorney General did not oppose the relators' request before the commissioner. Nor did the commissioner conduct a hearing of any kind. Accordingly, the requested writ must be issued ordering respondents to comply with R.C.
However, for the foregoing reasons, the requested writ of mandamus is allowed.
Writ allowed.
REILLY and MOYER, JJ., concur.